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Harassment based on gender identity or gender expression

“Gender identity” refers to a person’s internal knowledge of his or her own gender, and a person may identify as a gender that does or does not appear to correspond to the sex assigned to that person at birth, or the person may not identify as either female or male. Of those people who feel that their birth sex and/or physical bodies are mismatched with their sense of self, not all identify as transgender. Some individuals whose internal knowledge of their gender is inconsistent with their birth sex may undergo sex transition services.

A person’s self-presentation of themselves as female, male, androgynous, or as another gender, as evidenced by their manner of dress, speech or other physical expression of themselves, is referred to as “gender expression.” While the gender expression of most people appears to indicate a close match between their birth sex and their gender identity, the gender expression of others may appear not to match either their birth sex, their gender identity, or both.

Though some courts and administrative agencies have been willing to interpret state and local sex discrimination laws to protect transgender people, federal law does not explicitly forbid harassment based on gender identity or gender expression. However, California’s Fair Employment and Housing Act does. Violations of the law in this regard can include the following:

Firing a transgender employee after the employer finds out about the employee's gender identity or planned transition

Denying a transgender employee access to workplace restroom facilities available to other employees

Requiring a transgender employee to use a restroom not consistent with the employee's gender identity or presentation

harassing a transgender employee

Permitting and/or refusing to investigate claims of harassment by coworkers and supervisors

Negative employment action taken because of an employee’s gender identity